RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04689 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His initial aviator continuation pay (ACP) eligibility date be corrected to reflect 1 February 2012. ________________________________________________________________ APPLICANT CONTENDS THAT: Due to the delayed release of the Air National Guard (ANG) FY12 ACP program he requests his ACP date be corrected. In support of his request the applicant submits copies of his ACP Agreement, Active Guard Reserve (AGR) Order, Aeronautical Order, email correspondence, and supporting documents extracted from his military personnel record. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving in the Colorado Air National Guard (ANG) in the grade of Major, 0-4. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: NGB/A1PF recommends approval. A1PF states they concluded that the applicant should be permitted to request, execute, and be paid for a Fiscal Year (FY) 2012 ACP agreement effective 1 February 2012. a. According to Special Order A-9000088 dated 25 Jan 2012, the applicant was ordered to duty from 1 Feb 2012 through 31 Jan 2018. This period allows him to enter into a 4-year FY12 ACP agreement effective 1 Feb 2012. However, the release of the FY12 ACP policy was delayed until 24 Feb 2012. Because of this delay, the applicant was not allowed the full 30-day processing window per paragraph 1.7.3 of the ANG FY12 ACP Policy. The delay created confusion regarding his eligibility date which further delayed his application. This delay is through no fault of his own and the applicant meets all other eligibility requirements. b. Based upon the published policy guidance, the fact that the applicant met all eligibility requirements and that the delay in release of the FY12 ACP policy was through no fault of his own, they recommend approval of the applicant's request. The complete NGB/A1PF evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 3 February 2013 for review and comment within 30 days (Exhibit D). To date, a response has not been received. ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The AFBCMR Legal Advisor recommends that each case be considered in “executive session” regardless of the “Air Staff” advisory. Given the purpose of the law authorizing ACP, the Board should be clear that a given case presents a genuine injustice that must be remedied before granting applications for retroactive approval of ACP contracts. The complete AFBCMR Legal Advisor evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 1. In his response, the applicant states that he feels it is important for the Board to know that when he signed his current AGR orders, his AGR advisor told him that he met all eligibility requirements, and he would receive the 4-year ACP as an incentive for signing his AGR contract. This was a very large incentive for him and his family and part of the reason why he chose to accept a full-time military commitment. He was also told that there was a delay with FY 12 ACP (as there had been in years past) but that the delay would not have an effect on his receiving ACP. Once the policy was published, they would submit the application and he would receive ACP when the paperwork made it to NGB for approval. 2. He respectfully requests the Board approve his application based on the NGB/A1PF advisory which recommends approval and states he meets all eligibility requirements. The applicant closes by reiterating that he was told he would receive ACP as an incentive to sign his AGR contract and that this incentive was an important factor in his decision to accept the AGR orders. The applicant’s complete response is at Exhibit G. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an injustice. The applicant contends the delayed release of the Air National Guard (ANG) FY12 ACP policy unfairly precluded him from being able to execute a four-year ACP agreement even though he was otherwise qualified. After a thorough review of the evidence of record and the applicant’s complete submission, including his rebuttal response, we believe it is in the interest of justice to recommend granting the requested relief. While we note the comments of the SAF/MRB Legal Advisor indicating an applicant must prove by sufficient evidence that he or she is the victim of a serious injustice not shared by other, similarly situated officers, it is the opinion of the Board, that because the applicant’s AGR advisor told him that he met all eligibility requirements, and he would receive the 4-year ACP as an incentive for signing his AGR contract and he signed the new ACP agreement as soon as the renewal became available, we find it reasonable to conclude that the applicant anticipated receiving the incentives outlined in the agreement. Therefore, we recommend his records be corrected as indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that competent authority approved his request for an Aviator Continuation Pay (ACP) contract for the period 1 February 2012 through 31 January 2016 at a rate of $25,000 annually, under the Air National Guard Fiscal Year 2012 ACP program. The following members of the Board considered this application in Executive Session on 11 July 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR Docket Number BC-2012-04689: Exhibit A. DD Form 149, dated 19 Sep 2012, w/atchs. Exhibit C. Letter, NGB/A1PP, dated 31 Jan 2013. Exhibit D. Letter, SAF/MRBR, dated 3 Feb 2013. Exhibit E. Letter, AFBCMR Legal Advisor, dated 9 Apr 2012. Exhibit F. Letter, AFBCMR, dated 18 Jun 2013. Exhibit G. Letter, Applicant, dated 20 Jun 2013.